By NICOLE HALLETT

Last October, employees of the Elderwood Nursing Home on Grand
Island voted to unionize after years of dealing with short
staffing, stagnant wages and problems with management. Six months
later, the company has yet to come to the bargaining table,
claiming there are unresolved legal questions about whether
licensed practical nurses can be part of the Service Employees
International Union (SEIU).

Yale University recently was criticized for making a similar
decision. Despite a February vote to unionize by graduate students
in eight departments, Yale has so far resisted calls to begin the
bargaining process. Instead, it has appealed the decision to
certify the election and is refusing to bargain until the appeal is
decided.

Elderwood and Yale could hardly be more different. Yale is a
world-class Ivy League bastion of higher education. Elderwood is a
medium-sized elder care company that operates nursing home
facilities in New York, Pennsylvania and Rhode Island. Yet both
have made the strategic decision to not recognize the right of
their employees to unionize. Why?

My research on the decline of the labor movement suggests a
reason: Employers are counting on a changing of the guard at the
National Labor Relations Board (NLRB).

Republicans take control

The NLRB is the administrative agency that is tasked with
enforcing the National Labor Relations Act, the federal statute
that gives employees the right to unionize and collectively
bargain. The NLRB consists of five members who are appointed to
five-year terms by the president upon the advice and consent of the
Senate.

Right now, there are two vacancies on the board that President
Donald Trump will fill. Once the Senate confirms Trump’s
nominees, Republicans will control the board for the first time
since 2007.

The background of the three candidates reportedly under
consideration suggests the board will, in fact, be much friendlier
to business interests under the Trump administration. One of the
potential nominees, Doug Seaton, has made a career of being a
“union-buster,” the term used to describe a consultant
brought in by employers to beat a unionization campaign. Another,
William Emanuel, is a partner at Littler Mendelson, one of the
largest and most successful anti-labor law firms in the country.
Less is known about the third potential candidate, Marvin Kaplan,
but his history as a Republican staffer suggests he may also
represent employers’ interests.

Many observers assume this new board will overturn many
Obama-era precedents that favored unions. These precedents include
questions such as how to define bargaining units, at issue at both
Yale and Elderwood.

But the new board could go even further and roll back pro-union
decisions dating back decades. This could be devastating to already
weakened unions. With private sector union membership hovering at a
dismal 6.4 percent — down from about 17 percent in 1983
— nothing short of the end of the labor movement could be at
stake.

How politics intruded on the NLRB

The composition of the NLRB is important because most claims
regarding the right to organize and collectively bargain are
decided by the agency.

Unlike other employment statutes, such as Title VII and the Fair
Labor Standards Act, individuals and unions cannot file claims in
federal court and instead must participate in the administrative
process set up by the National Labor Relations Act. While aggrieved
parties can appeal board rulings to federal appeals courts, judges
grant a high degree of deference to NLRB decisions.

In other words, three board members — a bare majority of
the board — have an enormous ability to influence and shape
American labor policy.

Given the amount of power these three individuals can wield, it
is no wonder that the NLRB has become highly politicized in the
decades since its creation in the 1930s. Ironically, the board was
originally established as a way to try to insulate labor policy
from political influences.

The drafters of the labor act believed the federal courts were
hostile to labor rights and would chip away at the protections in a
way that would be bad for unions. Instead, the board has become a
political battlefield for the two parties who hold very different
views about labor policy.

This politicization came to a head during the Obama
administration, when it became impossible to confirm anyone to
serve on the NLRB. In response, Obama appointed several members
using his recess appointment power, which allows the president to
avoid Senate confirmation of nominees when Congress is in
recess.

Employers challenged the move, and the Supreme Court eventually
invalidated the recess appointments as executive overreach in NLRB
v. Noel Canning. After the decision, Obama and the Senate finally
agreed on five members who were confirmed. This new board, with a
Democratic majority, then decided many of the precedents that
employers hope the new members will overturn.

Flaws in the National Labor Relations Act

So what will happen if Elderwood and Yale bet wrong and lose
their appeals in front of the new Republican-controlled board?

In all likelihood, not much. The board process is long and
cumbersome. It often takes years from the filing of a charge for
failure to bargain to the board’s decision. In the meantime,
employers hope unions will have turnover in their membership,
become disorganized and lose support.

Moreover, the penalties available under the National Labor
Relations Act are weak. If an employer is found to have violated
the act, the board can issue a “cease-and-desist”
letter and require the employer to post a notice promising not to
engage in further violations. These penalties hardly encourage
employers to comply with their obligations, especially when they
have so much to gain from obstructing attempts to unionize and
collectively bargain.

If the labor movement is to survive, the National Labor
Relations Act needs to be reformed to fix these problems. Instead,
a few years of a Republican-controlled NLRB could be organized
labor’s death knell.